DHS Can't Condition Counterterror Funds on Running Elections Trump's Way

Walter Olson

On September 28, federal district judge Amir Ali in Washington, DC, ruled unlawful the Department of Homeland Security’s attempt to use funding leverage to get local governments to adopt various election rule changes favored by President Donald Trump but never enacted by Congress. While the ruling is limited in its scope, it still counts as a satisfying win for free and independent elections, federalism, and the separation of powers.

Over the past year and a half, Trump has been relentlessly trying to bully and buffalo states and local governments into revamping their election practices in line with his wishes. As I wrote when it started: 

Under our American system, voting and voter registration are predominantly responsibilities of the states, with Congress constitutionally empowered to add some overlays through legislation of general applicability. A president cannot change those basics by putting out an executive order, nor may he commandeer the states, through funding blackmail or otherwise, into acting as instruments of his pleasure. 

Moreover, the Supreme Court’s Spending Clause jurisprudence provides serious limits on Washington’s power to make states dance to its tune by attaching conditions to funding. Congress must have provided clear notice of the strings in question; the condition must be related to the underlying purpose of the spending (no cutting off grants for fighting street crime or wildfires to extract policy changes on, say, voter ID); the level of funding threat must not be serious enough to “coerce” the state; states and their agencies must not wind up “commandeered”; and so forth. Trump and his administration often act as if they had never heard of these constitutional constraints. 

Several cities and counties sued, led by Nashville, Tennessee. After proceedings that lasted six weeks, Judge Ali ruled that FEMA exceeded its statutory authority and, in doing so, violated the Administrative Procedure Act. Congress plainly had not authorized the strings; the judge added that if for some reason it had authorized them, the resulting policy would run into “serious constitutional problems.”

In a footnote, the judge rejects a particularly striking argument offered by DHS (citations mostly omitted): 

The defendants say the Spending Clause would not be implicated because it limits Congress, not the Executive. That argument is self-defeating. Limits on the spending power constrain Congress alone because the spending power itself is Congress’s alone. If the elections conditions were an exercise of executive power alone, then they run afoul of separation of powers given that only “Congress may attach conditions on the receipt of federal funds.” South Dakota v. Dole, 483 U.S. 203, 206 (1987). If the conditions instead represent a delegation of congressional power, then the Spending Clause constrains the scope of that delegation. 

“You only said Congress had to mind the Constitution; you never said we did” gets high marks for nerve, at least.